1. Call for papers for junior scholars roundtable at University of Luxembourg conference on the settlement of tax disputes under international law, 12-13 November 2015, Luxembourg. On 12-13 November 2015, the Research Unit in Law of the University of Luxembourg, with the support of the Fonds National de la Recherche Luxembourg, will be holding a conference on the settlement of tax disputes under international law, with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures, and bringing together international lawyers and tax lawyers to do so. Confirmed speakers already include Prof. Mads Andenas (University of Oslo), Prof. Ilias Bantekas (Brunel University), Dr N. Jansen Calamita (BIICL), Dr Abba Kolo (CEPMLP Dundee), Dr Sébastien Manciaux (Université de Bourgogne), Dr Luca Pantaleo (TMC Asser Instituut), Prof. Alexander Rust (Vienna University of Economics and Business) and Epaminontas Triantafilou (Quinn Emanuel). Part of the conference will be a roundtable discussion for junior scholars; giving them an opportunity to present their research on issues covered by the conference and to receive feedback from the conference speakers. Those selected will receive a bursary to fund their travel and accommodation expenses, and may also have the opportunity to contribute to the conference proceedings, which will be published. We are now calling for applications to present a paper at the roundtable, and invite junior scholars (PhD candidates, post-docs and fellows) with research interests in the field to apply by submitting an abstract (not exceeding 800 words) of their proposed paper, together with a copy of their CV, to Prof. Matthew Happold (Matthew.Happold {at} uni(.)lu). The deadline for submissions is 5 September 2015.

2. The International Law Programme at Chatham House will be hosting a meeting on ‘Foreign Affairs in National Courts: The Role of the Executive’ on Wednesday 23 September. The meeting will consider whether current practice is effective in maintaining a proper balance between the rights of litigants to have their claims decided and the interests of states in securing court decisions that do not harm the peaceful conduct of international relations. For further details and to enquire about registering see here.

3. The International Law Programme at Chatham House will be hosting a meeting on ‘Business and Human Rights: Bridging the Governance Gap’ on Monday 28 September. The meeting will consider what trends are likely to emerge in the field of business and human rights over the next decade and will coincide with the launch of a Chatham House research paper. For further details and to enquire about registering see here.

Breaking news: today the English Court of Appeal unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow. I imagine an appeal to the Supreme Court is virtually inevitable.

]]>http://www.ejiltalk.org/breaking-court-of-appeal-affirms-serdar-mohammed/feed/0Tears in Our Eyes: Third State Obligations in International Lawhttp://www.ejiltalk.org/tears-in-our-eyes-third-state-obligations-in-international-law/
http://www.ejiltalk.org/tears-in-our-eyes-third-state-obligations-in-international-law/#commentsThu, 30 Jul 2015 13:00:07 +0000http://www.ejiltalk.org/?p=13454

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention. The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime.

Peacetime riot control, including the use of tear gas as a riot control agent, is not prohibited under any body of international law. Having said this, the effects of tear gas on the enjoyment of individual rights fall within the scope of international human rights law (IHRL) ((Cf. Maslen ed., Weapons under International Human Rights Law, CUP, 2014).

The use of tear gas can have rights-undermining consequences on the protection of the right to life (in particular, as I note above, if used in closed spaces or if tear gas is fired at closed range directly at protesters), the absolute prohibition of torture and ill treatment, freedom of assembly and the right to health. It also raises unique concerns for specially protected groups, such as children, the elderly, disabled, detainees and prisoners. In addition, if used as part of a widespread or systematic policy against a civilian population, the use of tear gas can come under the scope of crimes against humanity.

Tear gas before human rights bodies and courts

Committees of the ICCPR, the CAT, the CRC and the ICESCR have all raised concerns about the effects of use of tear gas on the enjoyment of rights protected by their treaties (See for example, Concluding Observations of the CCPR to Ecuador, (CCPR/C/ECU/CO/5, 2009); Concluding Observations of the CRC to Panama (CRC/C/PAN/CO/3-4, 2011). The United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has raised specific concerns about tear gas use, pointing to the fact that “[w]ith regard to the use of tear gas, the Special Rapporteur recalls that gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions.” He also warns against “any modification of the chemical composition of the gas for the sole purpose of inflicting severe pain on protestors and, indirectly, bystanders.” (A/HRC/20/27, para. 35).

The use of tear gas, in particular by Turkey, has been subject to repetitive litigation before the European Court of Human Rights (ECtHR). In a series of cases under the Ataman Group, the ECtHR found that the use of tear gas against peaceful protesters, or persons deprived of their liberty constitutes inhuman and degrading treatment. The Committee on the Prevention of Torture of the Council of Europe issued guidelines for tear gas use and indicated that it must be prohibited in closed spaces within the Council of Europe member states.

Tear gas exports and third state responsibility

Assessing third state responsibility for tear gas use requires us to turn to the states that import tear gas. To assess the responsibility of tear gas importers requires answering two levels of questions. First, what triggers third state responsibility in international law? Second, what standard of proof is required to engage third state responsibility, such as that of South Korea, in cases of tear gas export?

‘A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) The act would be internationally wrongful if committed by that State’

Let us address these conditions in reverse order.

The internationally wrongful act

The internationally wrongful act in the case of tear gas use is the use of tear gas by the exporting states in ways that undermine their IHRL obligations to respect and ensure human rights. IHRL bodies have all identified that punitive, excessive, or disproportionate use of tear gas is a violation of IHRL. In our example, South Korea is a state party to the ICCPR, the CAT as well as the ICESCR and the CRC, so is Turkey. In other words, punitive, excessive or disproportionate use of tear gas constitutes an international wrongful act both for Turkey and South Korea.

Knowledge of the circumstances of the wrongful act

This is where things get tricky. What standard of proof satisfies the knowledge of an internationally wrongful act? The International Law Commission sets the bar high in its commentaries. It requires that:

The relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful and;

The aid or assistance must be given with a view to facilitating the commission of that act.

In other words, the fact that South Korea has knowledge of any non-IHRL compliant use of tear gas is not sufficient to trigger its responsibility under Article 16. South Korea must intentionally seek to contribute to the non-IHRL compliant use itself. In our specific case, it would not be possible to prove that South Korea was intentionally seeking to undermine the prohibition of torture or freedom of assembly in Turkey.

Does IHRL support a less stringent test?

Article 16 in its current interpretive state leaves us with a lot of Korean tear gas to be used in non-IHRL compliant ways in Turkey. Is this where we have to leave this issue?

The UN recommendations and the emerging state practice may point to an alternative and a less stringent test. In 2005, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pointed to the preventative duties of third states under IHRL. He asked exporting states to consider the risks associated with tear gas use. Specifically, he recommended exporting states must ‘prohibit the transfer of certain forms of equipment whose use in practice has substantially revealed a substantial risk of abuse and unwarranted injury’ (UN Doc E CN4/2005/62, page 11). The EC Regulation 1236/2005 of June 2005 legalized this view with respect to EU export policy. Significantly, it instructed EU member states to take into account available international court judgments and UN recommendations when assessing such risk.

The major tear gas exporting states (the US, Brazil, South Korea, and the UK) too have in place varying schemes of risk assessment for the export of teargas directly by states themselves or by private companies domiciled in these states. In the US, there is a multi-level agency vetting of foreign military sales prior to sale and a possibility to temporarily halt sales. In the UK, there is ex-post review that investigates whether there is a pattern of abuse in the importing state. In Brazil, the government committed to a review with regard to its tear gas export to Bahrain. Perhaps more significantly, South Korea has a review policy. When explaining the decision to halt the sale of tear gas to Bahrain, a South Korean official said that “I want to provide assurance and confirmation that [officials from KNPA, DAPA, MoFA, the Ministry of Industry and Trade, and the Ministry of Defence] are almost fully in agreement over forbidding the export of tear gas for human rights violations.”

Back to our case

What then are we to make of Turkey’s latest shopping spree? Here, standard caveats must apply. The recommendation of the Special Rapporteur on Torture is just that: a recommendation. It has no independent custom generating qualities. EU Regulation is a clear divergence away from Article 16 of the ILC, but cannot in and of itself generate custom. The practice of tear gas exporting states, however, does require more attention. Their policies, albeit not uniform, do point to the fact that the state practice of the most relevant group does not support the ‘intent to facilitate’ test of the ILC. Rather, domestic legal and governmental practice (key indicators of custom emergence) at the very least centre on the substantial risk of abuse or serious effect on rights enjoyment tests.

Whether this is sufficient to crystallize custom, and in what precision, however, does demand a more careful study. If intentionality is not a necessary condition, then what is? The future holds more tears in our eyes in Turkey and beyond. One thing we can see clearly through its haze, however, is the need to rethink the ILC Commentary paradigm for third state responsibility for specific types of international wrongful acts in the light of emerging custom that does not lend full support to it.

The Arbitration between Croatia and Slovenia, brokered by the European Commission, conducted under the auspices of the Permanent Court of Arbitration and concerning delimitation of the maritime and land boundary between the two States, has been ongoing over the past three years. By the Tribunal’s estimation, it has featured nearly 1,500 documentary exhibits and legal authorities and 250 figures and maps. Following the conclusion of the oral phase of proceedings in June 2014, the Tribunal issued a press release on 10 July of this year in which it announced that the award would be promulgated in mid-December.

All of this progress towards the peaceful settlement of the dispute was thrown into sudden doubt by the revelation that the arbitrator of Slovenian nationality, Dr Jernej Sekolec, was secretly in contact with the Slovenian agent, Simona Drenik. These contacts, which allegedly took place during two secret telephone conversations on 15 November 2014 and 11 January 2015, included discussions of how to best influence the other arbitrators to rule in Slovenia’s favour, the sharing of Slovenian submissions directly with Dr Sekolec (who stated that he would present them to the other arbitrators as his own ‘notes’ on the case), and the advance leaking of the deliberations of the Tribunal to Ms Drenik, including the tip that the Tribunal would award to Slovenia at least two thirds of the disputed waters it had claimed.

The story was broken on Wednesday 22 July by the Croatian daily newspaper Večernji list (acting on information first leaked in the Serbian tabloid Kurir), which published transcripts and audio recordings of the conversations between the two on its website. For a description in English, see this story by the reputable NGO Balkan Insight.

Following the revelation, matters have moved at a brisk clip: on Thursday the 23rd, Croatian President Kolinda Grabar-Kitarović was quoted as saying that the scandal had shaken faith in international law and Foreign Minister Vesna Pusić stated that Croatia was considering its options, including withdrawing from the arbitration if it felt that ‘the process had been corrupted’. On Friday the 24th, the Slovenian Prime Minister, Miro Cerar, announced that he had demanded and received the resignations of both individuals from the arbitration and announced that the Slovenian Government had not been aware of their communications. This was confirmed by a press release issued by the PCA and dated Thursday the 23rd, in which the PCA announced the resignation of Dr Sekolec and cited Article 2(3) of the Arbitration Agreement, providing that a vacancy caused by the resignation of an arbitrator triggers a fifteen-day deadline for the appointment of a replacement. Slovenia, acting quickly, appointed French national Judge Ronny Abraham, President of the International Court of Justice, as Dr Sekolec’s replacement on Tuesday the 28th.

Events have continued at breakneck speed with the Croatian Prime Minister Zoran Milanović announcing in a press conference (link to the video here) on Monday the 27th that, after talks with the leaders of all the major political parties represented in the Croatian Parliament, it had been decided that, in his words: ‘Croatia cannot be a party to this agreement to arbitrate, it has to withdraw from it, terminate it, immediately suspend it, while abiding by the general rules of the international law.’ (‘Hrvatska ne može ostati u ovom ugovoru o arbitraži, mora izaći iz njega, mora ga raskinuti, trenutno suspendirati, držeći se općih pravila međunarodnog prava.’). The Prime Minister went on to state that the Government would issue a request to the Croatian Parliament to this effect on Wednesday the 29th.

The PCA responded to the Croatian Prime Minister by stating that they wanted to hold a hearing in a next few days with both sides as soon as possible regarding the revelations. The European Commission, which helped originally set up the arbitration between Croatia and Slovenia in the first place, also responded to the Croatian Prime Minister (through their spokeswoman Mina Andreeva) by stating that, while they understood Croatia’s concerns about these recent revelations, these these concerns could, in their view, be overcome. The Slovenian Prime Minister has reacted to these moves on the Croatian side by stating (in a letter to the Croatian Prime Minister) that, in the Slovenian Government’s view, Croatia has no basis to unilaterally withdraw from the arbitration process.

We shall follow up with a longer, detailed post next week analysing these events – by which point all parties’ positions should be fully articulated – but we summarily indicate a few important issues for consideration:

Does the conduct of the Slovenian agent give rise to a ‘material breach’ due to ‘the violation of a provision essential to the accomplishment of the object or purpose’ of the arbitration agreement per Article 60(3)(b) VCLT?

What of the conduct of Croatia in seemingly employing espionage to discover the procedural misconduct at issue?

What procedural mechanisms, if any, can be employed by inter-state courts and tribunals to remedy judgments or awards that are based on serious procedural misconduct? In other words, what if this misconduct had been discovered after the promulgation of the award rather than beforehand?

How can the independence of judges/arbitrators from their country of nationality be strengthened through practicable reforms to the inter-state systems of judicial/arbitral appointment or election? The systems of appointment/election differ for judges versus arbitrators, as does potentially the strictness of their respective duties of independence, yet it is doubtful that anyone would seek to credibly justify or excuse Dr Sekolec’s

How can the practical ability of inter-state courts and tribunals to detect such misconduct on its part be strengthened, in light of the Tribunal’s ineffective internal investigation?

Hold fast to dreams//For if dreams die//Life is a broken-winged bird//That cannot fly.//Hold fast to dreams//For when dreams go//Life is a barren field//Frozen with snow.

With this poem by Langston Hughes I ended my graduation speech in high school. I remember it now as I am pondering how to put into words my feelings and thoughts of the last weeks oscillating between hope, fear and despair — triggered by the events unfolding after the Greek delegation “left the negotiating table” in Brussels on 27 June. When I graduated from high school more than 20 years ago I was quite hopeful (like generations before me) that knowledge combined with political activism could change the world for the better. Already then I was fearful of environmental disaster and military destruction, but periodical acts of teenage disobedience – plastering the school with antiwar poems to protest against the first Iraq war or blasting music over the courtyard while staging an impromptu play (I cannot remember against or for what exactly) — were not only fun but gave me and my friends a sense of agency – “Viele kleine Leute an vielen kleinen Orten, ….”/think global act local.

In the meantime the world has become no friendlier place (but who am I to state this privileged as I am). I may be wiser (although sometimes I doubt it), but I also succumbed to a mixture of complacency or trust in professions and institutions, resignation and perpetual lack of time. I trust that science and politics will do something to keep us safe and free, that one of the political parties will have a programme relatively compatible with my ideological leanings. I close my ears to the horror scenarios describing the consequences of climate change as I have stopped believing that we will achieve a reorganization of our economy and am too much of a coward to confront the disasters that lie ahead. But apart from complacency and resignation the possibly most significant difference to my political teenage self is the perceived loss of time. Time spent with friends who also had nothing more important to do than to think up little projects – plays, posters, protests… I am lucky that my current job does not meet the description of a “bullshit job” (recently formulated by David Graeber), but appears to leave me some freedom for thinking, educating, creating. Yet this has not helped to sustain the sense of agency I felt as a youth. I have become more knowledgable, my critique better founded but I no longer see how we (who?) might halt ecological destruction or social destitution. And thus I am not even using the time and space offered by my job for any kind of mischief that would combine joy, resistance and engagement for change.

The last weeks now worked like a wake up call for me, triggering a sense of urgency for action, some action, any action and if it is only the writing of this post (which prompts a multitude of voices in my head judging my musings to be “gratuitious”, “empirically unfounded”, “theoretically undercomplex” …). So what was the trigger that suspended resignation and shattered complacency and trust (“Vertrauen” — a word I have come to loathe in the past weeks for its abuse and misuse by crisis commentators)? It was, I suspect, a combination of a heightened perception of complicity in a number of outrageous injustices and the excitement that agency may be regained. I may have long resigned to the fact that my privilege is the flip side of other people’s poverty, that through my daily consumption choices I am perpetuating structural injustices. Thus you may call me a hypocrite — but whilst everyday complicity has become second nature it appears to me of a different quality if we (I!) unflinchingly (i.e. without any visible/public reaction on my part) register the deaths of thousands of refugees at the borders of Europe; if we not only watch on as human misery in Greece increases but my government actively contributes in my name as a German taxpayer.

As a sense of responsibility slowly pushed resignation aside the Greek announcement of a referendum came as a relief. For me (and I am not alone in this interpretation) the referendum was not merely a Greek affair. In my understanding it provided first of all an opportunity to express solidarity and resistance by supporting a No vote. Moreover, the referendum by putting to a brief halt the crisis resolution machinery promised a broader and more public debate not only about the short and medium term remedies to the eurocrisis, but also the long term reform of EU law and institutions and ultimately perhaps a re-humanizing of capitalism. While I had long lost interest in the rather stale academic debates about the need for, conditions and manifestations of a European public, during the days surrounding the referendum I did indeed feel part of a transnational, transeuropean public; part of a movement that voiced discontent with the austerity measures that have led to such utter deterioration of living conditions in Greece, but also disagreement with the general state of the world in which concerns of finance trump those of the real economy and where social justice and ecological health lie at the bottom of the hierarchy of political action.

These may be solipsistic impressions. There have been protests before and others will have experienced similar feelings already during the Genoa protests in 2001, the Arab spring, the mass demonstrations in Spain in 2011. For me a prior event prompting some optimism was when Occupy took Zucotti park and similar camps appeared around the world including one in front of the European Central Bank in Frankfurt. Yet whilst at that time I felt somewhat solitary in posting Occupy news from Frankfurt on my facebook timeline, the transnational politicization triggered by the Greek referendum in its extent appears unprecedented (at least in the Europe of my lifetime) – with public intellectuals weighing in en masse, economists taking public stances and writing open letters, with petitions multiplying, internet sites serving as platforms for transeuropean networking, organization of protest, collection and dissemination of political, economic and philosophical analysis.

Given the atmosphere of change, the feeling that we may have the chance to prey open a window of opportunity from our iron cage for a different, a social Europe it was all the more disenchanting to observe how the referendum was treated by European institutions, political parties and mass media in Germany. The persistent reinterpretation by officials and politicians of the referendum question as a question about “Grexit” was an attempt to foreclose any discussion about how a No vote should affect the crisis management within the eurozone. The depiction of the referendum as a nationalist affair pitted “the Greeks” against “the Germans” and completely ignored manifestations of solidarity across Europe. I have been tempted to take the partial and ignorant reporting by German media (which largely disregarded fundamentals of political economy by insisting on metaphors of doing your homework, keeping your household in order and not living beyond your means) as symptoms of the financially destitute state of German newspaper publishers and national public radio. Yet taken together with the statements of politicians and government officials, the ECB’s decision to freeze Emergency Liquidity Assistance afforded to Greek banks as well as post-referendum reactions it is difficult not to conclude that these have been concerted actions to weaken the push for change. European Council president Donald Tusk was very frank in an interview he gave the Financial Times after the referendum: “This new intellectual mood, my intuition is it’s risky for Europe. Especially this radical leftist illusion that you can build some alternative to this traditional European vision of the economy. I have no doubt frugality is an absolutely fundamental value and a reason why Europe is the most prosperous part of the world…. My fear is this ideological contagion is more risky than this financial one.”A further particularly enraging attempt to discredit those who supported the referendum as an act of resistance and a request for reform from within the European institutions was to place them in the same camp with right wing anti-European groupings.

Now that No has been turned into Yes to further farreaching austerity measures and that debt relief in form of a haircut is being ruled out, in particular by the German government, as a violation of the no bail-out provision (Art. 125 TFEU) I refuse to feel irresponsible for having supported a No. Rather I want to shout out loud into the direction of the German government and the European Council “no me representan!”. And my anger and disbelief increases as over breakfast these days I listen to the seemingly endless commentary on Deutschlandfunk – the German national public radio — that “the Greek” may still not be trusted as they do not appear to take “ownership” of the prior actions they needed to underwrite and implement before negotiations of a third “rescue package” would begin. In 2010 and 2011 it was the unpredictability of nervous markets that served as an argument against too much democratic deliberation on how the eurocrisis should be handled. Today as markets seem quite calm it is EU member states’ governments, also known as “the creditors”, who instrumentalise Greece’s debt to make a farce of democracy.

So what now? For one hot week (not even a whole hot summer) I and with me some others felt a renewed sense of agency and glimpsed a chance of change. The semester has ended and I have some time to reflect on the past weeks and on my responsibility as a human being, German and European Union citizen and international lawyer. I might join others to refine the international law doctrine of odious debt, the argument that Art. 125 TFEU does not prohibit a debt restructuring, the case that the ECB acted illegally when freezing Emergency Liquidity Assistance and that the IMF departed from its own policies and practices by supporting the Greek memoranda of understanding. These might be suitable activities for short term activist interventions in the crisis management. But what about after the semester break? When attention has diverted from Greece and we have reverted each to our own disaster specializations – climate change, migration, war, destruction of cultural property – our minds possibly more on career prospects than the fate of fellow human beings and future generations. What would it mean to assume responsibility? What can I do through my writing, teaching, activism to resist and if not to change the course of affairs at least (to use a formulation by Heinz-Dieter Kittsteiner) not to run from a history I cannot create.

I do not have an answer. Having observed the skewed reporting, one way to take responsibility may be to get involved more in public discourse. Strangely enough during the last weeks even though there was much talk of the fate of the European project – the European community of law – lawyers were conspicuously silent. It was mainly economists and some philosophers who (apart from politicians) took the stage. A few lawyers made the case that we should and could neatly separate questions of law and economics. I disagree. I am convinced that to take responsibility as lawyers we must attempt to understand the political economy of debt, money, finance which are largely legal constructs and highly intertwined with government. If we then aim at reform of our capitalist economy (which we should) to ensure that it can provide prosperity and freedom, we must attempt to stay clear of two mistakes. First we should not disregard the limitations that the current political economy imposes on reform, not aim for the impossible; second we should not be satisfied with too little, not fall into the trap of what Roberto Unger calls rationalizing legal analysis — meaning that we need to go beyond proposal for law reform that neatly fit into the given legal material as we have rationally reconstructed it, that we should question and not take as a given the present distribution of the means of production, tax and transfer policies or separation of fiscal and monetary policy. There surely is no easy fix to overcome the crisis of democratic capitalism. There cannot exist a feasible “plan B”, we should not hope for a grand design for a “welfare world”. Successful reform will need to be incremental and, in my view, requires a combination of theory and practice, a coupling of programmatic thinking with democratic experimentation. A number of useful suggestions have already been made for addressing structural deficiencies of the Economic and Monetary Union, among them those put forward by Yanis Varoufakis, Stuart Holland and James Galbraith in their “modest proposal.” In order to develop further ideas we urgently need perspectives – historical perspectives into the political economy and legal construction of capitalist institutions in the last five hundred years as well as perspectives opened up by contemporary social experiments such as, for example, the introduction of parallel currencies.

Finally, I believe that we need to make time. It may indeed be the most forceful act of resistance and a precondition for gaining agency to reclaim time — be it from bullshit jobs, the internet or consumption. Time to walk on the beach, sit in the park, make music, recite poetry, think slow and dream of a revolution.

Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations. And so I compliment all of the diplomats and lawyers involved.

The purpose of Security Council Resolution 2231 is primarily to endorse the JCPOA, which is itself a legally non-binding agreement, and to implement the actions of the Security Council which were agreed to in the JCPOA. Specifically, the Security Council decides in Resolution 2231 that on Implementation Day, as defined in the JCPOA, the previous resolutions of the Security Council regarding Iran’s nuclear program will be terminated. Implementation Day is scheduled to occur when a number of essential actions are taken by Iran, and by the U.S. and the E.U., as spelled out in Annex V of the JCPOA. Practically speaking, Implementation Day is likely to occur within the next 6-8 months.

So again, within the next 8 months, according to Resolution 2231, all of the Security Council’s previous resolutions on Iran regarding its nuclear program, inclusive of sanctions applied pursuant to those resolutions, will be terminated. This is subject, however, to a “snapback” procedure, described in operative paragraphs 11-13 of Resolution 2231. According to this “snapback procedure,” any party to the JCPOA, including Iran, can lodge a complaint with the Security Council at any time alleging substantial noncompliance with the JCPOA’s terms by any other party. If no resolution can be achieved on the matter, the Security Council will vote on whether to continue in effect the termination of its previous resolutions. If this vote by the Security Council fails – e.g. if one of the permanent members votes against it – all of the Security Council’s previous resolutions, including the sanctions implemented thereby, will come back into effect. This process was particularly sought for inclusion by the United States, so that U.S. officials could truthfully say to a skeptical Congress that the U.S., acting alone (i.e. as complainer, and as a permanent member of the Security Council), could if it wished cause the re-application of Security Council sanctions in the event that Iran substantially failed to comply with the terms of the JCPOA.

Assuming the “snapback” procedure is not implemented, however, after the termination of previous Security Council resolutions occurs on Implementation Day, Resolution 2231 puts in their place a more limited, continuing set of restrictions on trade with Iran, which are to continue until UNSCR Termination Day. UNSCR Termination Day is scheduled in the JCPOA to occur in 10 years from Adoption Day. This interim set of restrictions is outlined in Annex B to Resolution 2231, and includes restrictions on trade with Iran, primarily in items and technologies related to Iran’s nuclear program. It does, however, allow for some exceptions for permissible trade in technologies necessary to support the 6,000 uranium enrichment centrifuges which Iran is allowed to maintain in operation throughout the term of the JCPOA.

The restrictions also, notably, include the continuation for five-years of the conventional arms embargo which was a part of previous Security Council resolutions on Iran. The continuation of this arms embargo was one of the more contentious points of the JCPOA negotiations between the parties, and this five-year extension is the resultant agreed compromise.

Importantly, from the perspective of Iran, if all sides abide by their commitments under the JCPOA, Resolution 2231 provides that:

[O]n the date ten years after the JCPOA Adoption Day, as defined in the JCPOA, all the provisions of this resolution shall be terminated, and none of the previous resolutions described in paragraph 7 (a) shall be applied, the Security Council will have concluded its consideration of the Iranian nuclear issue, and the item “Non-proliferation” will be removed from the list of matters of which the Council is seized;

For Iran, this promise represents its ultimate aspiration on this issue – the full removal of international sanctions related to its nuclear program, and its treatment as a lawful possessor of peaceful nuclear energy capabilities.

There would appear to be no “poison pills,” or impossible, or even unreasonable commitments for any party in the text of the JCPOA or in Resolution 2231. Optimism is therefore warranted that this aspiration will be achieved.

1. Call for papers, 2015 Legal Theory and Legal Philosophy Conference (20 and 21 November 2015, Ljubljana): In Search of Basic European Values.” The Graduate School of Government and European Studies and the European Faculty of Law, both Slovenia, invite researchers undertaking research on public law, human rights , legal theory and legal philosophy to submit abstracts for participation at the 2015 Legal Theory and Legal Philosophy Conference (20 and 21 November 2015, Ljubljana) under the title “In Search of Basic European Values”. Interested applicants should send a 250-word abstract and a CV in narrative form by 1 September 2015 to jernej.letnar {at} fds(.)si. Authors will be notified of acceptance by 15 September 2015. If you have any questions, please write to dignitas {at} fds(.)si. More information is available here.

]]>http://www.ejiltalk.org/announcements-cfp-legal-theoryphilosophy-conference-on-european-values-ljubljana-new-additions-to-un-audiovisual-library/feed/0Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United Stateshttp://www.ejiltalk.org/living-instruments-judicial-impotence-and-the-trajectories-of-gay-rights-in-europe-and-in-the-united-states/
http://www.ejiltalk.org/living-instruments-judicial-impotence-and-the-trajectories-of-gay-rights-in-europe-and-in-the-united-states/#commentsThu, 23 Jul 2015 09:59:13 +0000http://www.ejiltalk.org/?p=13451

Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.

First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.

Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent anyobjectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)

In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do havecases like that), or some other parade of horribles?

Third, in both Europe and in the US there is another, second-order big question: even if know what the standards for making this decision should be, who gets to decide – should it be the courts, or democratically elected and accountable legislatures? Should courts be protecting minorities from oppressive majorities, or should they maintain a space in which the minorities should seek to persuade the majority, in the democratic process, to give them the recognition that they actually seek? This of course brings into the picture a whole set of deep questions about the role and limits of the judicial function, coupled with a political dynamic that plays itself differently in each society.

Finally, this political dynamic is manifest in Obergefell. Who decides? Justice Kennedy decides, that’s who, and the price for his swing vote was apparently that the four other (liberal) justices in the majority should keep their mouths shut and their concurrence complete. In fact, when reading his opinion for the Court I was struck by both how non-technical (even unlawyerly) it was, and by how its author was (rather self-consciously) writing grand pages for the ages. There’s nothing in the opinion about tiers of scrutiny, rational basis, etc., and very little – almost bizarrely so – about equality, but plenty about some four principles and traditions that in Justice Kennedy’s view mandate the result that he reached. And then there are these nice passages obviously written to be quoted, like so:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Awww. The dissents, for their part, emphasized the need to respect the democratic process, which was in fact already leading to marriage equality, rather than impose a constitutional solution by judicial fiat that would stifle that democratic process and create further controversies about judicial self-empowerment. Justice Scalia’s dissent was predictably furious (he opens by calling the majority opinion “a threat to American democracy”) and very, very quotable:

Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect…. Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

And this must be the most supremely apoplectic footnote 22 ever written:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

We should now reflect for a moment and think about why the US Supreme Court decided an Obergefell, but the European Court only decided a Schalk and Kopf v. Austria,holding that (at least for now) there was no pan-European right to gay marriage.To do that let us just quickly trace the trajectory of gay rights in the US and in Europe. It was in 1981 that the Strasbourg Court said in Dudgeon that homosexual intercourse could not be subject to criminalization, which would violate Article 8 of the Convention. But on the other side of the Atlantic, in the 1986 Bowers v. Hardwick case, the US Supreme Court upheld precisely such criminalizations. That decision got overturned – in an opinion by Justice Kennedy – only in 2003, in Lawrence v. Texas, more than twenty years after Dudgeon. It was in 1999, in Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom that Strasbourg said that gay people should be allowed to serve in the military, but it took until 2011 to repeal Don’t Ask, Don’t Tell in the US. And it was in 2003, in Karner v. Austria, that Strasbourg ruled that it would be discriminatory for the state not to provide specific legal benefits to homosexual couples that it provided to heterosexual couples.

So it seems that Europe was well ahead of the US when it comes to the judicial recognition of gay rights. Today, however, the picture seems rather different. Instead of an European Obergefell, in 2010 Strasbourg delivered Schalk and Kopf. While a unanimous Court rejected the applicants’ gay marriage claim under Article 12 of the Convention on more or less formalist and textual grounds (fine by me), it was divided 4 to 3 on the equality, Article 14 issue: if the state provides marriage to straight couples, how can it justify not treating gay couples equally? The Court was kind to say that two gay people living together enjoy a “family life” in the sense of Article 8, but then went on to find no violation of that article taken together with Article 14, even though the respondent state made no argument as to why the difference in treatment is actually justified. The Court, as it now it does so often in this age of subsidiarity, only invoked the mantra of lack of European consensus-margin of appreciation, even though that deference doctrine still requires some justification to be offered for the differential treatment that was identified.

Then, in 2014, the Grand Chamber of the European Court decided Hämäläinen v. Finland. The applicant in that case was a transgender person who was married before her transition, and complained that her rights were violated when full recognition of her new gender was made conditional on the transformation of her existing marriage into a registered partnership. Here we have a link between gender identity and same-sex marriage: allowing the applicant to legally be treated as a woman while maintaining the marriage would mean that the marriage would turn into a same-sex one, which Finnish law did not allow for. And here the Court again deployed the concept of the European consensus (para. 74):

Thus, it cannot be said that there exists any European consensus on allowing same-sex marriages. Nor is there any consensus in those States which do not allow same-sex marriages as to how to deal with gender recognition in the case of a pre-existing marriage. The majority of the member States do not have any kind of legislation on gender recognition in place. In addition to Finland, such legislation appears to exist in only six other States. The exceptions afforded to married transsexuals are even fewer. Thus, there are no signs that the situation in the Council of Europe member States has changed significantly since the Court delivered its latest rulings on these issues.

The margin due to states on these sensitive moral and ethical issues was thus wide. The applicant had other options. But the Court then went on to approvingly cite and reinforce Schalk and Kopf – para. 71: “The Court reiterates its case-law according to which Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf v. Austria, no. 30141/04, § 101, ECHR 2010);” and para. 96: “While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (see Schalk and Kopf v. Austria, cited above, § 63);” It then laconically dispensed with her equality claim, para. 112: “The Grand Chamber agrees with the Chamber that the applicant’s situation and the situations of cissexuals are not sufficiently similar to be compared with each other. The applicant cannot therefore claim to be in the same situation as cissexuals.”

So there you have it: a 4 to 3 Chamber judgment was elevated in authority by a 14 to 3 Grand Chamber judgment. This means that there shall be no European Obergefell, at least not anytime soon. But what about civil unions or registered partnerships, you may ask? Well, in the 2013 Vallianatos and Others v. Greececase the Grand Chamber, by 16 votes to 1, said that the exclusion of same-sex couples from a form of registered partnership in Greece was unjustified and discriminatory. Key to this finding was the Court’s appraisal of the European consensus: of the 19 states which had some form of registered partnership, only two (Lithuania and Greece) excluded same-sex couples from their scope (para. 91). Note here what the Court does not say – it does not say that every European state must create some form of civil union or registered partnership, but that once they do, they have to include same-sex couples in this new institution. But states that only have marriage do not need to extend it to same-sex couples.

And just this week we had a Chamber judgment in Oliari and Others v. Italy, dealing with the fact that Italy had no institution such as a civil union or registered partnership that would have included same-sex couples. The Court says – unanimously – that Italy should provide such unions. But even so the Court’s reasoning does not seem to go beyond Vallianatos. It is on the knife’s edge, focusing repeatedly on Italian-specific facts and context of this case, above all on the findings of the highest Italian courts that the legislature should create a system of civil unions, which the legislature failed to do. In fact, three judges wrote separately to emphasize this unique Italian context, and the narrowness of the Court holding as they would have wanted it to be. Even having said that, it is not easy to read the Oliari judgment as requiring all European states to have a system of civil unions or registered partnerships, and at that one which would include same-sex couples. In fact, that ambiguity seems to have been the whole point of how the judgment was drafted.

What, then, is the explanation for these diverging trajectories of the protection of gay rights in the US and in Europe? Why and how did the US actually overtake Europe? Why and when did the Strasbourg Court, originally so progressive in its protection of gay rights, become so timid?

The answers to these questions are not to be found, I think, in the different interpretative traditions or methodologies in the US and Europe, and certainly not in the Vienna Convention on the Law of Treaties. There is in my view only one real explanation: social changes in the US outpaced those in Europe as a whole, and in a much enlarged Europe at that, with LGBT people of all stripes becoming more visible and accepted. And it is these changes – having openly gay neighbours, who have their openly gay partners, who might have (adopted) kids, that go to the same school as your kids, and so on, in addition to the presence of LGBT people like Caitlyn Jenner in the media – that ultimately enable legal changes, whether through the democratic process or through the courts. Without this – without the stories with which Justice Kennedy actually begins his opinion (a surviving gay partner who by law cannot have his name listed on his partner’s death certificate so that “they must remain strangers even in death”; a lesbian couple, both nurses, who adopted three children with special needs; an Afghan war veteran and his husband), and the sheer number of such stories – the courts would never have the guts to impose legal changes, no matter how they later couch their reasoning, e.g. in the grand moralizing way of Justice Kennedy.

This brings us back to a divided Europe, specifically the 47 member states of the Council of Europe. While social changes in Western Europe have by and large kept pace with the US, Eastern Europe is (still) a very different story. Think of Russia, where two apparently gay guys can’t walk on the street together, let alone have a gay pride parade, where the Constitutional Court itself upheld the validity of law banning “gay propaganda”, and where (like in many other places) homophobia is a political strategy. Imposing gay marriage there, and doing so all the way back from Strasbourg, would be little short from science fiction.

Consider, in fact, how Justice Scalia concludes his Obergefell dissent: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” In Strasbourg, however, at least today, the European Court needs little reminding about its own impotence. While it may sit at the apex of the comparatively strongest regional human rights system, that strength, which took so long to build, is structurally quite fragile. When a “nice” European state like the UK is willing to endanger that system for the sake of its own internal daily politics and with regard to Strasbourg decisions which are objectively of minor societal importance, can you imagine how a Strasbourg judge might feel about the backlash that a premature gay marriage decision might provoke?

It is this fear of escalating an already existential crisis, and the institutional weakness of the European Court when compared to the US Supreme Court, that explains why there will be no pan-European Obergefell in the short-to-medium term. This is why Strasbourg uses the twin devices of the margin of appreciation and the European consensus approach: to avoid going too far, too quickly. In fact, we can observe this approach even in the celebrated 1981 Dudgeon judgment (para. 60) – yes, Northern Ireland was forced to decriminalize sodomy, but only after a “great majority of the member States of the Council of Europe” already did so. And yes, that approach can rightly be criticised as being arbitrary both as a framing exercise and in the cherry-picking of the elements of one’s sought-for consensus, but that is in fact the main feature of this approach, not a bug.

In short, if you, dear reader, were a Strasbourg judge, would you risk pissing off half of Europe by making decisions that you knew for a fact would never be implemented anyway? Fiat iustitia, pereat mundus (or, even worse, pereat Argentoratum)? I think not. Or at least only a few of the 47 sitting Strasbourg judges would be prepared to do so. In America, on the other hand, it seems exceptionally unlikely that Obergefell will produce the type of damaging counter-reaction by large segments of “the People” as did, for instance, Roe v. Wade. Justice Kennedy timed it well, even if his prose is not as good as he obviously thinks it is.

Call for papers on Human Rights Protection, Human Rights Public Policies, Democracy and Governance: The International Journal of Human Rights and Constitutional Studies (IJHRCS) is currently seeking submissions on Human Rights Protection, Human Rights Public Policies and Democracy and Governance. The coming issues aim at providing an opportunity for scholars and practitioners to explore novel and original material on the above areas, including themes relating to the current economic and political crises; globalised democratic governance; migration and multiculturalism; democratic deficit theory; digital participation, e-democracy, e-governance. We welcome the submission from scholars around the world and would like to encourage young law researchers especially to submit their recent works. Articles previously published cover researches both doctrinal and inter-disciplinary. Please click here for submission details.

On 1 July 2015 a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the Federal Law ‘On ratification of ECHR’, the Federal Law ‘On international treaties’, and a number of procedural norms. According to the applicants,

‘participation in international cooperation should not lead to a breach of human rights or contradict the fundamental principles of the constitutional system. In their view, the contested rules oblige the courts and other state bodies to implement unconditionally ECtHR decisions, even if they contradicted the Russian Constitution. As a result … the person who applies the law is put in an impossible situation, because such a conflict might be insoluble.’

Although the RCC held that the contested norms do not conflict with the Constitution, thus leaving the de jure legal status of the Convention intact, this ruling and its high publicity in Russian media clearly signifies a change in the political attitude towards the implementation of decisions of the European Court.

Position of the Constitutional Court

The Court confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of Russian legal system, according to Article 15 (part 4) of the Constitution. However, the Court reasoned that

‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’

There is no revolution in admitting that ‘both the Constitution and the European Convention are based on shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly been any conflicts since 1998, when Russia ratified the Convention. However, when it comes to interpretation, apparently the position can differ. According to the Constitutional Court, ‘in such a situation, by virtue of the supremacy of the Basic Law, Russia will be forced to abstain from the literal implementation of the decision of the Strasbourg Court.’

Interestingly enough, the Court refers to the practice of supreme courts of European countries (Germany, Italy, Austria, and the United Kingdom), which also ‘adhere to the principle of the priority of norms of national constitutions in the execution of the ECtHR judgments.’ Presumably, by mentioning the UK in this list of examples, the Court in fact refers to the loosely interpreted practice of issuing a declaration of incompatibility of a statute with the UK’s human rights obligations under s.4 of the Human Rights Act 1998.

Making a political statement, the RCC underlines that

‘in the resolution of such conflicts it is necessary not to seek self-isolation, but proceed from the necessity of dialogue and constructive engagement. Only in this way can a truly harmonious relationship between the legal systems in Europe be built, based on mutual respect rather than submission.’

Significantly, the decision discusses procedural means to ensuring the supremacy of the Constitution in the implementation of decisions of the ECtHR. The Court retains this prerogative for itself through two existing types of constitutional proceedings:

1) review of the constitutionality of legislation in which the ECtHR has found flaws: any lower instance court re-considering a case on the basis of a decision of the European Court shall submit the relevant inquiry to the Constitutional Court (Article 125 (part 4) of the Constitution);

2) interpretation of the Constitution at the request of the President or the Government of the Russian Federation when the authorities consider a particular ECtHR ruling is impossible to enforce without violating the Constitution (Article 125 (part 5) of the Constitution). If the Constitutional Court of the Russian Federation comes to a conclusion that the Strasbourg decision is incompatible with the Constitution, it is not to be implemented.

This second procedural instrument – the incompatibility ruling – is new for the Russian legal system, which contains no legal framework for it. Therefore, the Constitutional Court suggested that the federal legislature may want to create for the RCC ‘a special legal mechanism to ensure the supremacy of the Constitution in the implementation of ECtHR judgments.’

Position of the President

During the hearing at the Constitutional Court on 1 July 2015, the President’s representative in RCC Mikhail Krotov, objected to the initial request by MPs. It should be noted that having the President’s representative at an RCC hearing, though it may seem contrary to the principle of separation of powers, is a normal practice in Russia. Since 1996, on the basis of a Presidential decree, the representative is empowered to participate not only in hearings on determining the (un)constitutionality of Presidential decrees, but also ‘in any other hearing by the invitation or consent of the Constitutional Court’.

‘without denying the existence of systemic problems in the delimitation of the competence of the European Court of Human Rights and the basis for its interaction with national constitutional courts, we believe that any grounds for declaring disputed … norms inconsistent with the Constitution of the Russian Federation are absent.’

However, he added, not all ECtHR rulings are to be implemented:

‘The binding nature of judgments of the European Court of Human Rights is not in doubt, however the boundary of their legal force is limited. The decisions of the European Court are not abstract, they are taken on specific cases, state the specific violations of the Convention in respect of specific individuals’.

He further continued that those ECtHR decisions that indicate ‘flaws of domestic legislation, cannot be unconditionally implemented’.

The Constitutional Court in its final ruling mirrored this position of the President’s representative.

Connection with the Yukos case

It is believed by some analysts that this case was initiated by the Duma in connection with the ECtHR ruling in the Yukos case, which ordered Russia to pay 1.9 billion euro compensation to shareholders of the oil company. Some of them – according to the Russian government – had benefitted from the tax fraud committed by the company.

Although, predictably enough, the RCC denies any connection of the 14 July Ruling with the Yukos case, it may be assumed that the desire to counter ‘unwanted’ and allegedly politically motivated decisions of the ECtHR has prompted the creation of a new legal framework within the national legal system. Alternatively, the move to remind Russians and the outside world of the supremacy of the Russian Constitution may be inspired by the current political climate and extensive exchange of sanctions between the EU and Russia. Unfortunately, such a response to sanctions could lead to (in)voluntary serious consequences for the justiciability of human rights in Russia.